April 19, 2007

Symposium: Everyone Get in the Carhart

by PG

By popular demand -- or rather, by its being the only suggestion -- the next De Novo symposium will be about issues related to the recent 5-4 Supreme Court decision that the federal Partial Birth Abortion Ban is constitutional. In recommending Gonzalez v. Carhart, commenter Luke pointed out, "Ilya Somin and Johnathan Adler have both written fairly lengthy analyses of the case at the VC, and it seems like a good opportunity to talk about federalism, the commerce clause, Roe v. Wade, Raich, etc, etc."

Anyone is welcome to contribute a post to the symposium on any topic related to the case, including those issues that were not briefed by the parties but that might have been relevant. I haven't read the case thoroughly enough yet to write a substantive post today, but I will make one remark of Justice Ginsburg's dissent that is critical (before I probably go into full defensive mode on it). Ginsburg says, 'The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." Ante, at 14, 24, 25, 31, 33. A fetus is described as an "unborn child," and as a "baby," ante, at 3, 8.' I agree that "abortion doctor" is inappropriate terminology, particularly given how few doctors who perform abortions do so full time, and Planned Parenthood's argument that ob-gyns and surgeons who don't perform out-patient abortions may have to use the procedure in emergency situations for a woman's health. And "unborn child" is a phrase peculiar to the abortion prohibitionists, though "baby" is a common word even in reference to fetuses, when we know that the mother plans to carry it to term.

But before we all rip on Kennedy the Betrayer -- a pastime enjoyed by our conservative friends for many years -- we should note whether it's fair to attribute this allegedly biased language to him. "Abortion doctor[s]" appears five times in the majority opinion, and each time it is Kennedy's own phrase, so fair to criticize him there. Of the nine uses of "unborn child," however, only three are outside quotation marks; the rest are from the legislation itself or from Casey (where Ginsburg had no opportunity to object, not having been on the Court at the time). Moreover, Kennedy points to how the federal legislation at hand is an improvement on the Nebraska statute struck down earlier: 'Congress, it is apparent, responded to these concernsbecause the Act departs in material ways from the statute in Stenberg. It adopts the phrase "delivers a living fetus," §1531(b)(1)(A) (2000 ed., Supp. IV), instead of "'delivering . . . a living unborn child, or a substantial portion thereof,'" 530 U. S., at 938 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The Act’s language, unlike the statute in Stenberg, expresses the usual meaning of "deliver" when used in connection with "fetus," namely, extraction of an entire fetus rather than removal of fetal pieces.'

The citation to use of the word "baby" on page 3 is just wrong -- it's not there, at least not in the PDF on the Court's website. As for its use on page 8, the only page on which it is used, every single occurrence is from an extended quotation of testimony before the Senate by a pro-life nurse describing an abortion she had witnessed. Kennedy never uses "baby" as his own words, though he does use the term "fetus" in repeating the brutal descriptions of the dilation and extraction procedure that Congress put in the record.

It's a small point, but I am worried that Ginsburg let her disagreement with the majority's legal opinion push her into making unfair and inaccurate accusations about their -- well, let's be honest, Kennedy's -- political or ethical opinion.

The difference between "abortion doctor" and "doctor who performs abortions" seems to be splitting hairs a bit, too.

Posted by: Tom T. at April 19, 2007 10:57 PM

"Abortion doctor" uses the term "abortion" in an adjectival way to modify "doctor" -- the "doctor" is defined entirely by "abortion." It implies that this is all that the doctor does. I am pointing out that this is inaccurate, not only for doctors who work at Planned Parenthood, many of whom perform abortions only a couple days a week and otherwise have non-abortion practices, but also for doctors who may not perform scheduled abortions at all but who may use the procedures under discussion to deal with miscarriages and other medical problems that they encounter in their regular practice as OB-GYNs, surgeons, etc. Given that this law's penalties are directed entirely at physicians -- they can be imprisoned for up to two years, which presumably means that performing the procedure is a federal felony, and as felons the physicians would be nearly unemployable -- I think it's important to look at how we're talking about them.

Fair enough; I take your point, and I guess I'm reacting more as a question of prudence rather than accuracy. It still comes across as a relatively narrow distinction (after all, you've used "abortion provider" yourself on this blog) not expressly made by Kennedy himself, and it just seems like a strange point for Ginsburg to call such attention to. It opens Ginsburg up to unfair cheap shots from abortion opponents along the lines of "even pro-choicers think being an abortion doctor is a bad thing." Certainly, if Kennedy did intend the term as an insult, he may have been pleased to see just how sharply it stung.